Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 33 - Evidence - March 5, 2013
OTTAWA, Tuesday, March 5, 2013
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-27, An Act to enhance the financial accountability and transparency of First Nations, met this day at 9:32 a.m. to give consideration to the bill.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Honourable senators, please help me to welcome our first witnesses. First we have, from the Assembly of First Nations, Jody Wilson-Raybould, British Columbia Regional Chief; and Karen Campbell, Senior Policy Analyst. With them at the table is a representative of Idle No More, Charlene Desrochers, Barrister and Solicitor.
Witnesses, we look forward to your presentations, which will be followed by questions from the senators. Beforehand, if I may, I will have the senators introduce themselves, starting with the deputy chair, to my left.
Senator Dyck: I am Senator Lillian Dyck, from Saskatchewan.
Senator Lovelace Nicholas: Senator Lovelace Nicholas, from New Brunswick.
Senator Watt: Senator Watt, from Nunavik.
[Translation]
Senator Demers: Senator Jacques Demers, from Quebec.
[English]
Senator Patterson: Dennis Patterson, from Nunavut.
Senator Beyak: Lynn Beyak, Ontario.
Senator Raine: Nancy Greene Raine, from British Columbia.
The Chair: Again, my name is Vern White. I am the chair of the committee.
Please begin your presentation. Ms. Wilson-Raybould.
Jody Wilson-Raybould, British Columbia Regional Chief, Assembly of First Nations: Good morning, honourable senators. It is my pleasure to appear before you on Bill C-27. My name is Jody Wilson-Raybould. My traditional name is Puglaas. I come from the Musgamaw-Tsawateneuk and Laich-Kwil-Tach people of northern Vancouver Island. I live in my home community of Cape Mudge with my husband. I am also a member of my community's council. I am here today as Regional Chief for British Columbia and on behalf of the Assembly of First Nations as the portfolio holder for First Nations' governance.
I presented on Bill C-27 before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development on October 17, 2012. Some minor changes have been made to the bill, but it is substantially in the same form as it was then. Our core concerns with the bill remain the same, both in terms of the substance and of the process by which it was developed. Some of the changes made were an attempt to respond to concerns that the bill creates a different standard for First Nations than for other governments in Canada, but, ironically, making the changes actually supports our contention that the bill was ill-conceived in the first place, simplistic and too far-reaching. The AFN has consistently stated that Bill C-27 is misguided legislation that belies a broken relationship between the Government of Canada and First Nations, a relationship that continues to be characterized by federal direction, interference and impositions on First Nations governments. This is our common message with respect to the federal government's overall approach to addressing the deficiencies of governance under the Indian Act through its own legislative agenda.
Canada's approach, reflected in Bill C-27 and in bills such as S-2 and S-8, is that the federal government has the right and, in fact, the responsibility to determine policy and draft legislation affecting our peoples on matters the government considers to be in our best interests and that it can do so with limited or no consultation. This approach persists despite the broad scope of our inherent right to self-government. Canada argues that this bill, like the others, is good for us, good for our citizens and good for the country. Bill C-27 seeks to ensure increased transparency and accountability, and, therefore, the government says, ``Who could argue with that?''
Our perspective as First Nations, reflected in our approach to nation rebuilding, is quite different from Canada's. It is that our people have the right and, equally important, the responsibility to determine our own policy and make our own laws that govern our lands and peoples.
As many witnesses to both the House of Commons and the Senate committees have presented, Bill C-27 is not the mechanism to support or improve accountability. It neither looks to develop standards or capacity to provide financial management nor reflects the work of our nations to build financial administration laws and appropriate structures, supports and processes.
Make no mistake, First Nations leaders are fully committed to and supportive of transparency and accountability to their citizens. Our citizens demand it. Idle No More is not only about holding Canada to account for the plight of our peoples but also about holding our governments to account. In 2010, the chiefs-in-assembly passed a resolution speaking to First Nation governments demonstrating accountability. It states their commitment to maintaining transparent and accountable decision making and also confirms that their primary reporting and accountability relationship is to their citizens, not to Canada. This resolution was not, as may have been represented by government witnesses, implying support for Bill C-27. Financial transparency and accountability are aspects of a much broader accountability framework that is part of our nation-rebuilding agenda. All federal legislation that concerns our peoples' interests, including Bill C-27, must support this agenda and our transition from essentially being wards of the state, under the Indian Act, to self-governing peoples with responsibility for good governance, including designing, establishing and enforcing our own accountability mechanisms.
Those of us who live on-reserve and understand the challenges of rebuilding are not naive. It is not a simple undertaking to undo 150 years of colonization and rebuild. The truth is that we all have a responsibility to work together and find solutions to facilitate this transition and not simply to say that it is too hard or that we have tried and then use the excuse to take the position that the government is currently taking to design our post-Indian Act governance structures for us. As I said before, this is neo-colonialism and an inappropriate use of federal legislative power and will simply continue to challenge the relationship that exists between the Government of Canada and our nations.
In our January 11 meeting with the Prime Minister, in discussing the transition from the Indian Act, the Prime Minister responded to our criticisms of his government's actions and challenged our leadership by asking for solutions. One solution — one option — is Bill S-212, an Act providing for the recognition of self-governing First Nations of Canada, which was introduced by the former chair of this committee, Senator St. Germain, late last year and is a mechanism to facilitate a new relationship. My colleague Terry Goodtrack, President of the AFOA, provided similar evidence last week in terms of the relationship between the Government of Canada and First Nations. Specifically, he spoke about the fiscal relationship.
So, too, did another colleague, Harold Calla, Chair of the Financial Management Board, an institution that is the result of another First Nations-led solution. Under the First Nations Fiscal and Statistical Management Act, the power of a First Nation to make a financial administration law, a FAL, is recognized. Under the FMB's standard, a FAL addresses all of the substantive policy matters contained in Bill C-27, other than the regressive provisions dealing with the powers of the minister to publish internal documents of a First Nation or to seek and enforce administrative and legal remedies against any First Nation that does not comply with the terms of bill.
In my own community, We Wai Kai, as I presented to the House of Commons committee, we learned about Bill C- 27 — then Bill C-575 — and we decided to enact a FAL under the FSMA, which we have now done. This is important because as we transition away from the Indian Act and develop our economy, our source revenues are increasing. It is important that there be a robust financial framework for how we, as a community, budget, expend and account for that expenditure. Our financial administration law is far more reaching and comprehensive than what is covered in Bill C-27.
Similarly, all self-government agreements set out that a First Nation will establish internal financial administrative arrangements comparable to those of other governments within the Confederation. They also typically refer to the First Nations following generally accepted accounting principles. First Nations agree to operate like any other government within Canada, including the treatment of related business entities, but they design their own systems. While Bill C-27 also speaks to transparency and accountability to First Nation citizens, the bill reaches further and has different policy objectives. The requirement for public posting on a First Nation website, along with posting on AANDC's website, and the allowance for any person, not just a member of a First Nation, to apply to a court for disclosure of financial statements and salary reports, along with increased enforcement powers for the minister, reflects an additional and perhaps underlying goal of the legislation, namely, increased public scrutiny and greater federal oversight and control.
As you have been told by previous witnesses, First Nations are already required to report on matters covered in this bill through their funding agreements with the federal government. The statutory requirement for public disclosure of salaries, including from related entities in a schedule of remuneration, is reaching. In truth, it is only one aspect of the relationship between our business entities and our governments, which is far more complicated and involved than just about disclosing salaries and wages that might be paid to chief and council — namely, how investment decisions are made, what types of economic activity the nation is undertaking, and the risk tolerance the nation has if it is guaranteeing an enterprise.
In short, First Nations governments and their related entities should report and account financially in a manner comparable to other governments and their entities in Canada but under our own law. In this spirit, therefore, in addition to the exemption for self-governing First Nations, there should also be an exemption in Bill C-27 for a First Nation that has a FAL under the First Nations Fiscal and Statistical Management Act.
Before I close, I want to make it clear that the Assembly of First Nations and First Nation governments had no involvement in the development of this bill. There are obligations on Canada for consultation, and it is unfortunate that we do not have a clear process or agreed-to mechanism to ensure First Nations' involvement. The AFN welcomes calls from honourable senators and previous witnesses for this bill to be withdrawn. In its current form, Bill C-27 will do little to practically support true First Nations' accountability or nation rebuilding and will simply further impose federal rules upon our governments. In addition, there is the real potential for legal challenge if Canada continues to impose legislation on First Nations without meaningful consultation.
Accountability should be supported through recognizing and supporting the efforts of our governments as they rebuild their institutions and financial policies and practices. The focus of legislators should be on mechanisms to increase options available to First Nations to develop and implement their governance structures, including accountability frameworks, so they can rebuild their future within Canada rather than being legislated from above. You heard Chief Roland Twinn talk about how Sawridge First Nation has developed their constitution and is implementing their right to self-government, but this is not recognized by the Government of Canada. This is just one example where First Nations' real and tangible efforts, as directed by their citizens, are thwarted by Canada.
Bill S-212, while not existing in its final form, is an option that needs to be studied thoroughly. In my opinion, it represents the promise of an appropriate use of the Crown's legislative powers — one that supports and empowers the exercise of self-determination by our nations based on recognition and reconciliation and on the principle of free, prior and informed consent of our citizens.
The solutions that are working, and we are making progress on different fronts, are being found by working together and by creating the space and tools for communities to rebuild and move through the post-colonial door. It is the government's choice and opportunity to work with us on solutions rather than impose its own. Otherwise, for many of our nations that door will never be truly open.
The Chair: I do not know whether Ms. Campbell also wishes to speak. She is here to answer questions. Thank you.
Charlene Desrochers, Barrister and Solicitor, Idle No More: Good morning; I hope everyone is feeling great this morning. I am recovering from acute pharyngitis so my voice is a little raspy. If you need me to speak up, please let me know.
I would like to acknowledge and give thanks to the Algonquin people whose land we are sitting on today. In particular, I am giving glory to God for providing me with the opportunity to speak on behalf of the founders of Idle No More: Sheelah McLean, Nina Wilson, Sylvia McAdam and Jessica Gordon, who were unable to appear today for various reasons.
I am a Cree French woman from northern Ontario. I am a member of Constance Lake First Nation. I grew up in northern Ontario about around Longlac, which is about 300 kilometres northeast of Thunder Bay. I am a registered nurse and a lawyer. All of my legal and health experience has been with First Nations people on and off reserve, urban, rural and remote, and fly-in First Nations. I have worked on pretty well all the issues that affect First Nations people today. I also have a Master's of Law in Indigenous Peoples Law and Policy from the University of Arizona, which I attended on a Canada-U.S.Fulbright Program scholarship.
I have reviewed Bill C-27 and I have listened to some of the presentations that were given last week. I will not get into a deep legal analysis of the bill because you have heard it from various people. I have the following comments to make on behalf of Idle No More. They are just basic comments because everyone has talked about the issues.
Bill C-27 requires all 630-plus Indian Act chief and councils to publish salaries, expenses and band financial information to the public, including First Nations-owned businesses that are not operated using public monies. I understand that one of the underlying bases of the bill is to address the issue where some chiefs refuse to disclose their band's financial information to members. I want to put on the record that yes, those types of chiefs exist, but they are very few and far between and are not representative of our leadership at large. Like non-indigenous people, First Nations people are not perfect and should not be held to a higher standard of accountability based on our race. The paternalistic, racist, genocidal Indian Act is the problem, not the chiefs. Many of our chiefs are good people with honourable intentions, and it is an insult to all First Nations people to sweep our leaders with the same racist broomstick, which is implied under Bill C-27.
Lack of financial accountability and transparency is one of several results of the poor socio-economic conditions in our communities. Lack of financial accountability and transparency is also one of the numerous intergenerational impacts of the residential school in the Indian Act. Bill C-27, like the Indian Act, will not solve the intergenerational impacts of residential school and the socio-economic conditions that our people face.
Bill C-27 imposes standards on First Nations' governments that far exceed those for municipal, provincial and federal officials in other jurisdictions. It requires First Nations-owned businesses, unlike non-Aboriginal businesses, to publicly report income and expenses, thus undermining competitiveness and the viability of First Nations-owned businesses. The bill also adds more bureaucracy to existing accountability requirements imposed on First Nations leadership by the federal government. First Nations are already required to provide Ottawa with over 150 financial reports each year, which is contrary to the recommendations of Canada's Auditor General.
Most First Nations do not have the capacity and resources to meet Canada's new standards of racism, which are basically inherent in Bill C-27. Bill C-27 implies that all chiefs and councils are corrupt, and this is a racist assumption that is factually and statistically incorrect. Statistically, the salaries of most chiefs and councils are less than half of the salaries of Canadian MLAs and MPs. Accusations that our chiefs and council earn disproportionate salaries is intended to turn the Canadian public against First Nations people and to keep invisible the corrupt policies of Canadian politicians that infringe on our inherent rights to sovereignty, land and resources.
Bill C-27 is unconstitutional, as is the suite of legislation that is before the house. The people were not consulted, and the legislation infringes on our right to self-government and our rights under treaty.
The government has a legal duty to consult First Nations people, not just chief and council — there is more to First Nations than Indian Act chief and council — before imposing any type of legislation on our people, and clearly that duty has not been met with the current suite of legislation before the house.
The hearings held by the Senate and house committees do not satisfy the government's duty to consult and neither do the government's partnerships with the Assembly of First Nations, the Congress of Aboriginal Peoples and the Native Women's Association of Canada. It is the people who are the rights holders, not the chief and council. The chief and council are members of the collective. The AFN, CAP and NWAC are certainly not the rights holders and do have any authority whatsoever to speak on behalf of the people. There are a lot of issues with the national Aboriginal organizations. They are non-transparent and unaccountable to the people.
First Nations-owned businesses that are not funded by public monies also have a right to privacy, and that includes keeping their business records private from competitors. Bill C-27 breaches their right to privacy.
Financial accountability and transparency is an issue internal to First Nations governance that requires the balancing of individual and collective rights. First Nations collective rights are protected under section 35 of the Constitution, and they trump individual rights most of the time. It is not the government's place to balance individual and collective rights for us. It is the collective's right, through a reputable internal dispute resolution process, to determine whether an individual right trumps the collective.
The racist Indian Act and the residential school era are the cause of the poor socio-economic conditions in many of our communities. We must also face and address the intergenerational impacts of residential school. This includes greed, self-interest, violence, poverty, addiction and many others. We have many good people as well. This is all caused by the Indian Act. Amending the Indian Act through piecemeal legislation will only perpetuate the impacts of residential schools. Legislation will not do one thing to create good governance in our communities.
It has been proven that self-government improves poor socio-economic conditions in First Nations. Restoring our traditional governance structure through self-government is the solution. Instead of unilaterally imposing legislation, work with the First Nations. I have recommendations — many — if they are truly intent on helping First Nations improve their lives.
The first recommendation is that the federal and provincial governments need to accept and recognize First Nations as another order of government and as nations. We are nations. We are not 630 little communities; we are nations. I am a member of the Cree Nation. There is no good reason in 2013 not to do so, except for racism, greed and hate. First Nations people are suffering, and the government has a duty to treat everybody with dignity and respect. First Nations are deserving of the same thing.
Let Bill C-27 and the suite of legislation before the house that affect the rights of First Nations people die on the Order Paper. You can repeal the sections of the omnibus bill that affect First Nations people as well. Federal legislation delegating self-government to First Nations is not self-government, nor does it recognize First Nations as another order of government or as nations. We do not need legislation to tell us how to live. Legislation that targets ``Indians'' is an Indian act, regardless of the title, and is discriminatory. Nation-to-nation agreements are the answer and also the proper place to address governance issues, like those within Bill C-27. Nation-to-nation agreements can cover every issue, from restoring traditional models of governance to fiscal arrangements, accountability, transparency, resource revenue sharing to dispute resolution and the balancing of collective and individual rights.
First Nations should also be at the table for the 2014 federal-provincial transfer payment negotiations to address the jurisdictional issues and to participate in transfer payments on a nation-to-nation basis. First Nations should also receive their fair share of resource revenues from our lands.
The poor socio-economic conditions — poor housing, poverty, poor health and education — need to be addressed as a whole and all at once, not on an issue-by-issue basis. Our people cannot heal properly unless all of our issues are dealt with as a whole. Our kids cannot learn properly if they live in poverty or poor housing. Addressing education alone will do nothing to lift the poor socio-economic conditions in our homes. The cuts to non-insured health benefits and the lack of adequate health care for First Nations people need to be addressed. Our kids cannot learn if they are not healthy or eating properly.
Our people need adequate physical, mental and spiritual health care to deal with the intergenerational impacts of residential school. If they are not addressed, expect the status quo to remain. That is what we see today. The burden on the taxpayer will only rise if we do not address these issues now. The status quo is no longer sustainable. The long we maintain the status quo, the more costly it gets to fix the issues.
Those are my comments on behalf of Idle No More. I want to address Jody Wilson-Raybould's comment that Bill S-212 is a viable option for First Nations. I totally disagree with her. The AFN does not allow people to speak. We do not have a right to vote in the elections of national chief. The AFN is a very undemocratic organization —
The Chair: Excuse me Ms. Desrochers, we have a short time frame this morning. If you wish to speak Bill S-212 at another point in time —
Ms. Desrochers: I am not speaking to it. I am just speaking to the fact that the AFN does not have the authority to say that bill is a viable option.
The Chair: Today we are talking about Bill C-27. If you are finished on Bill C-27, we will allow the senators to ask questions.
Senator Munson: Thank you for coming this morning.
I was just going over the schedule of witnesses we have had and there were eight in favour and eight against, up until now. Now it is nine to eight. It is like a hockey game, with Montreal beating Toronto. There you have it; there is the split. The people who have come before have given emotional and substantive testimony.
You talked about Canadians viewing this whole procedure of Bill C-27. How do you explain that kind of split within the Aboriginal community itself? Sometimes you walk away from here as a senator and say, ``My goodness that makes a lot of sense; transparency and openness.'' Transparency is a big word around here these days. Other times, when we hear your compelling testimony, you say ``racist'' and ``paternalistic.'' How did that come about?
Ms. Desrochers: Our people are becoming educated, and we have a right to expect democracy from whoever purports to speak on our behalf. If they are not going to consult the people, they need to be accountable and held responsible for their actions, whether they are good or bad. People have a right to participate in decision making and many of our people are not allowed to participate in the AFN decision-making processes.
Ms. Wilson-Raybould: Thank you for the question. Certainly among the 17 witnesses who have presented before this committee, I am sure none of them have been against the principle of transparency and accountability. I cannot speak for the other witnesses, but I imagine some of the witnesses who were for the legislation were not Aboriginal witnesses. However, I know there are some First Nations that support this piece of legislation. Again, I go back to the principle of and support for accountability and transparency. Certainly that is just one aspect of a broader fiscal, financial management regime within a First Nation that our First Nations must develop for themselves, by themselves, for it to be legitimate and to be legitimized by their citizens as part of the broader agenda of nation rebuilding.
Senator Munson: One of the witnesses last week gave some dramatic testimony and talked about, from her perspective, the abusive relationship between chief and members of her nation, the impossibility of trying to get any input in elections — I think there has to be more accountability — and felt that the chief will get in anyway and that this bill does not address it. However, in terms of the money, salaries and all the transparency aspect, that is impossible. She talked about the intimidation, and when you walk away from that kind of testimony, you think there has to be something put into place. Then you hear testimony from Alberta nations, and they say, ``Well, we have the best practices going on here. Why do you not learn from us as opposed to the government?'' As senators sitting here, sometimes we hear two messages and do not quite know which way to go when it comes to dealing with this bill.
Ms. Desrochers: I think you need to restore our traditional governance. Our traditional governance models were not based on the Indian Act. The Indian Act is the problem. As long as the Indian Act remains in place, the status quo will remain. The federal government is lengthening the terms of the elections of our Indian Act chiefs and councils. That will not solve the issues you just referred to about the lack of disclosure, because those issues do exist. They are few and far between. I have clients calling me complaining about not getting documents from their chief and council. I have worked for chief and council as well, so I know the issues. It is the Indian Act that is the problem. That Indian Act needs to be repealed, and it needs to be repealed through nation-to-nation agreements. Nation-to-nation agreements will recognize us as sovereign nations and will allow us to rebuild our nations. With all the issues in Bill S-212, there is no reason why they cannot be included in nation-to-nation agreements. Legislation does not work. Legislation is a colonial thought process, and imposing colonial legislation on us is not going to create good governance and rebuild our nations. It will build us into more colonized people and will perpetuate the intergenerational impacts of residential schools.
Ms. Wilson-Raybould: To respond to that question, senator, regarding Peguis and that witness's testimony, certainly that is a reflection from one witness with respect to one singular community in this country. The reality for the majority of our First Nations in this country is that we are entirely transparent and accountable. We have good leadership and are responsive to our citizens. Certainly in terms of wanting to acquire financial statements from First Nations or to acquire what chief and council are paid, that is something that the minister is able to provide right now, or compel the providing or the purveying of those documents to citizens. I recognize from some of the testimony from the former minister that these requests coming to the minister are few in number, but certainly he has the ability right now to provide these documents to citizens in our nations. I will say that with respect to the number, and I think it was about 250 requests a year, in relation to the number of citizens across the country, it is quite minimal. However, I think it is dangerous to paint a brush across all First Nations in this country referencing the perhaps challenging circumstances in one particular community.
Senator Munson: Very briefly, because there are many other senators who want to ask questions, I cannot believe that we have come this far in the process and I hear from you that there was no involvement in this bill, none, zero. Yet, we are way down the road. Majority rules. This bill will become law. Will you challenge it in court?
Ms. Wilson-Raybould: Challenging something in court is the prerogative of individual First Nations or citizens who choose to do so. In terms of consultation, as I said in my remarks, we have not had any consultation with respect to the development of this bill. I think there is an opportunity, however, to look at how policy is developed within the department. There is a huge opportunity, as I also said, for us to look at joint policy development or look at having some consideration from the outset with respect to these issues. If that were the case, there would have been regard for what First Nations are actually doing to create, develop and implement concrete, comprehensive financial accountability mechanisms and systems within their communities, whether it be through the First Nations Fiscal and Statistical Management Act or the passage and certification of financial administration laws.
Certainly our chiefs and assemblies speak for themselves. The AFN is not a government but certainly supports our leadership in coming together. Our leadership did come together and support for themselves financial transparency and accountability by way of the resolution that was passed in 2010. We have and we will continue to come before honourable committees like this and the House of Commons committee to present our views and perspectives on various pieces of legislation that move forward, but ultimately the ideal situation is for First Nations and our Crown partners to engage in joint policy development and look at mechanisms that can support that development.
Ms. Desrochers: I just want to respond to the joint policy development. Joint policy development is fine, but if it will be developed by the current players in the system, as in the Department of Indian and Northern Affairs, the Assembly of First Nations, CAP and NWAC, the status quo will remain because those organizations do not consult the people. Indian Affairs does not consult the people. It is an undemocratic process. The people on the ground are not being consulted, and that is the issue. That is why these issues create. That is why Idle No More has risen. The people are not being consulted. They are not being respected. They have a right to participate in decision making in this joint policy development. The status quo is not working. The Department of Indian Affairs is an incompetent organization. It is a waste of taxpayers' dollars, as is the Assembly of First Nations, CAP and NWAC in its current format. Money is being diverted from the people on the grassroots level who need the money.
The Chair: Excuse me, if I may. We have a lot of people who want to ask questions. Although I appreciate that you have opinions about the service provided by a number of different groups, we really want to focus on Bill C-27 and have your responses do that as well. I will call on Senator Patterson with the next question, please.
Senator Patterson: I would like to respond to Chief Wilson-Raybould's thoughtful comments. My view of Bill C-27 is that it is an incremental approach to a real problem that exists, albeit in a minority of bands. We did hear some very compelling testimony from some courageous witnesses who came forward. There was some evidence, too, of a climate of intimidation that may have prevented others from coming forward.
I am very heartened by the talks about facilitating a new relationship since January. I am all for seeing that happen. I believe we should look at modernizing the treaties. I believe the resource revenue sharing issue needs to be addressed, as we have done in the North.
Chief, you talked about the commendable work your band has done in enacting FAL, I think it is called, under the FSMA. Bill C-27 does not stop that from happening, did not stop it from happening and would not stop it from happening. You suggested that your regime in your band goes much farther than Bill C-27. Rather than suggesting we table Bill C-27 or we exempt your band and others from Bill C-27, does what you have done not mean that your band would easily meet the requirements of Bill C-27? You are going beyond what is in Bill C-27 in disclosure. Why is Bill C- 27 a threat?
Ms. Wilson-Raybould: Thank you for the question, Senator Patterson. Certainly I agree that there are many initiatives and options that have been led by First Nations communities and citizens, incremental options moving towards self-government. One of those options is developing financial and administrative law and becoming scheduled to the FSMA. Another incremental option is becoming scheduled to the First Nations Land Management Act and other mechanisms to enable First Nations to take some form of control around governance.
In terms of Bill C-27 and my community's reality, yes, we have a financial administration law. Yes, we address the provisions that are contained within Bill C-27 in terms of transparency and accountability.
There are different standards, however — as I think has been presented to this committee — articulated through the Financial Management Board, the more comprehensive standards that we comply with in terms of the broader financial management arrangement within a First Nation community. Of course, it speaks to transparency and accountability. It also speaks to budgeting and expenditures and accounting for those budgets and expenditures.
I recognize your comments regarding supporting a new relationship, needing to modernize treaties and recognizing that we do require a framework for access to resource revenue sharing. We are seeking and pursuing that option, as you have in the North.
In terms of Bill C-27, I have read some of the transcripts of witnesses who have presented around challenges that they have had in obtaining information from their governments. This is a reality. It is a small reality in our communities. To put forward and pass national legislation in response to those concerns that are from a minority among our First Nations I think is a bit heavy handed. It is using a sledgehammer to put in a nail.
In terms of the broader relationship, the more important relationship is how parliamentarians can work with our nations, support our nations' rebuilding and support our nations where they have become empowered to develop their own financial administration systems and, in doing so, not have to ensure compliance with a national piece of legislation or have to detract from the provisions that are contained within our own laws in order to ensure that there is compliance or that there are no conflicting challenges with respect to the two laws.
Regard should be had for what our First Nations are actually doing and what our citizens are actually asking for and driving within our own communities. I think it is the better approach than putting forward a piece of legislation that broadly sweeps across all First Nations. The better approach is to support what our communities are actually doing, on the ground, to rebuild our governance and move beyond the Indian Act.
Senator Dyck: Thank you for your presentations this morning. My first question will address the numbers of so- called non-compliant First Nations. Senator Munson said that, for our witnesses so far, it was about half for and half against the bill, but, as a steering committee, we made a decision to have a balance in the number of witnesses that would potentially be for or against. It does not necessarily reflect what is actually happening across the country.
Who knows what the numbers are? We have heard from the department. We have heard from the Canadian Taxpayers Federation. They talk about all these numbers of non-compliant First Nations, but nobody that we have heard from so far has the numbers. No one has actually said who is not complying. Does anyone have a list, to your knowledge? Does anyone have a list of how many First Nations are non-compliant?
Ms. Desrochers: I do not think so. I do not think there is an accurate number of people who have those issues. However, I can say that there are people who are scared to come forward to address these issues, and there is a lack of financial resources to hire legal counsel to get that financial disclosure. That is a big issue that prevents people from coming forward. However, I think people need to start being told that they can seek advanced legal costs in court and bring a motion for financial disclosure from their chief and council if they are not getting it. I think it comes down to educating our people that there are avenues. If chief and council want to breach human rights, then, by all means, hold them accountable. File an application in court and seek advanced legal costs and then seek solicitor-client costs on a substantial indemnity basis.
They need to start being held accountable. I need to make it clear that these chiefs are not everyone. Do not sweep all of our leadership with a broad broomstick.
Ms. Wilson-Raybould: I appreciate the question and the response. I recognize that there have been witnesses who have been critical of their governments and have had difficulty in obtaining information. Certainly, consideration could be given to putting together a list of those First Nations that are so-called non-compliant. However, more importantly, with respect to the nations that I represent in British Columbia and across the country, we have quantified or done an analysis of what our nations are actually doing practically, on the ground, to improve their situations and to move beyond the Indian Act, including what they have done in terms of developing laws around transparency and accountability and around a broader financial management regime and what they have done in other areas. Looking at what First Nations communities have actually done has true merit in terms of identifying the tremendous progress that our nations are making in the area of governance and governance reform. By virtue of quantifying what our communities are doing, the ability for other nations to see what other communities have done has tremendous merit. We sought to do that, and have done that, in British Columbia, and I know that, across the country, these efforts are being made as well. Building on the success of other First Nations has been reaping many rewards.
Senator Dyck: My second question is a follow-up. Chief Raybould, you said that the minister, at this very moment, can provide the information that band members need right now without Bill C-27. Why do we have this bill then? In a sense, it could be that the Department of Aboriginal Affairs and Northern Development has actually created the problem for individual band members because they are not providing the information when an individual band member asks for the information. We have heard from witnesses saying that the department is not giving them the information, so, in a sense, would you not agree that the department has actually created the problem by not providing the information that the band member is asking for?
Ms. Wilson-Raybould: I cannot speak for the minister of the department on not responding to requests from citizens for the disclosure of that information. I certainly feel it is in within the duties of the minister to provide that information upon request. I would agree with you that what is contained within this bill, in terms of disclosure, is already provided for. In reading the bill, I know that this bill goes beyond those disclosure requirements with respect to monies that are transferred from the federal government to First Nations in federal programs or administration of federal programs and services. It extends its reach to entities of a First Nation's government or those entities that a First Nation is involved in. One can think about the reasons or the policy rationale behind the legislation in terms of extending the reach and come to one's own conclusions regarding wanting that broader public disclosure of salaries and of increasing federal government control over and understanding of the own-source revenues between and among our First Nations, the potential reality of increased own-sourced revenues and the effect that increased own-sourced revenues would have on federal transfers.
Ms. Desrochers: I also know that the Department of Aboriginal Affairs takes a hands-off approach. I have been told they do not want to get involved in governance issues between chief and council and their members, and I guess that is where the leading political party of the day needs to take a stand and force the department to hand over that information to the people.
Senator Ataullahjan: My question is for Ms. Desrochers. You have stated that Bill C-27 will undermine the competitiveness of First Nations' businesses, but we heard last week that this was not the case. Much business is already given to outside consultants, and, if information was delivered, it would not be commercially sensitive.
Ms. Desrochers: Sorry, can you repeat that? They are given to consultants or given to the public at large?
Senator Ataullahjan: We heard that a lot of business is already given to outside consultants.
Ms. Desrochers: Are the consultants hired for personal business, though? That is completely different, as opposed to just giving it to the public.
Senator Ataullahjan: With outside businesses, they are saying that it will not affect whether you put the information online because a lot of the business is given to outside people and is not sensitive.
Ms. Desrochers: It depends. There are 630 First Nations, and not all of them are going to want to give their private information for band-owned businesses to the public at large. If an individual First Nation wants to do that, it is their choice. It is up to the individual First Nation, but this bill broadly sweeps and includes all Indian Act chief and councils.
Senator Lovelace Nicholas: Thank you for being here. Since there is supposed to be proper consultation with First Nations on legislation, would this bill be invalid for the First Nations not consulted? Will it still affect them? If you were not consulted with legislation and there is a duty to consult, I would think that it should affect them.
Ms. Desrochers: That is a good question, but again, that will be up to whether or not the bill is challenged at the end, and how your statement of claim or application is framed if they challenge the legislation.
Ms. Wilson-Raybould: Senator, if and when this bill is passed, it will apply to all First Nations in Canada, with the exception of self-governing First Nations. In spite of there being no consultation, the bill is national in scope and compliance will have to be provided by First Nations.
Senator Lovelace Nicholas: This question is not really about Bill C-27, but I would like an answer anyway.
The Chair: Quickly, senator, please.
Senator Lovelace Nicholas: There have been four or five bills that have been brought forth to First Nations by the government. Have any of these bills helped, or will they help, First Nations people?
Ms. Desrochers: No. Can I comment on the issues only dealing with Bill C-27? You cannot look at First Nations issues in isolation on a piece-by-piece, Bill C-27 approach. You have to look at First Nations on a holistic level. Bill C- 27 affects our lives on every other angle. The whole problem from day one has been that the political parties are taking an issue-by-issue examination of our lives when you are supposed to look at all the issues at once. Our lives are run in a circular approach, not a linear issue-by-issue approach. Unilaterally imposing legislation upon our people will not work. It has been proven that self-government works, and self-government means the First Nation is doing it on their own without legislation.
Ms. Wilson-Raybould: I agree that the majority of government-led pieces of legislation are a unilateral approach to our First Nations governance and seek to impose First Nations governance on our nations. No matter how well intentioned, they will not work. Imposed legislation by the Government of Canada on our nations is not legitimate in the eyes of our citizens. In order to move effectively, incrementally or concertedly beyond the Indian Act towards self- government, our nations have to — and are — taking responsibility for that.
We have to do the hard work of nation rebuilding and direct change. Our citizens must direct the change within our own communities in terms of identifying who our businesses are, determining how we elect our governing body, identifying how we make rules and laws and how we comply with them. The hard work of nation building is recognizing that there may be efforts or opportunities to work in partnership and develop First Nations-led solutions, legislative or otherwise. However, federally imposed pieces of legislation will not work, however well intentioned. The only way that we can move effectively beyond the Indian Act is if there are First Nations-led solutions that are legitimate in the eyes of our citizens.
Senator Demers: Good morning, and thank you very much for your presentation. I know both sides, and no matter what beliefs, we really take this seriously when you come and talk to us. I get confused sometimes from what I heard last week. There were three people, and one lady in particular was very clear. We all looked at each other, most of us, and said, ``Geez, it takes a lot of determination, energy and whatever to say what she said.''
Ms. Desrochers, I read something this weekend in Le journal de Montréal. This weekend Le journal de Montréal published a list of myths that the Canadian public believes to be the truth about First Nations. I am just saying what was written, but the journalist is also an expert who has been following First Nations for a long time and is well- known. Among these myths were statements such as ``First Nations frauds are a system'' and ``First Nations are costly to Canadian taxpayers.'' Okay, here is more of the answer.
Do you not think that Bill C-27, with the transparency clause that is provided, can help the Canadian public understand that these myths they believe are very wrong? This paper is used — maybe Senator Watt from the Quebec side heard about it, or maybe you have, but it is perception. It is an article that is very difficult to read because I have been here three and a half years, have gotten to know a lot of people from the First Nations and listen to them. I do not believe in the way it was written, but that journalist talked to a lot of First Nations people.
Thank you very much for your presentation and for listening to me.
Ms. Wilson-Raybould: Thank you for the question. Certainly every individual in this country is provided with the opportunity to express their opinion and put forward their views on First Nations governments.
As I have said, and as my friend here said, we cannot put a broad stroke brush across all First Nations in this country. Will Bill C-27 help to dispel the myths? I think that by virtue of the fact that we are having this conversation, and that it has extended over quite some period of time, it has actually encouraged the perception that there is corruption within First Nations' governments. That is certainly not the case.
I believe that the better focus of parliamentarians and our First Nations collectively is to focus on the real solutions that exist right now, to move forward and create financial management regimes within our First Nations and can be supported in a meaningful and concrete way in this country. Having said that, I certainly believe that First Nations, parliamentarians and Canadians have an obligation to ensure that we share our information and fulfill our requirements or our obligations to educate not only ourselves but also the broader Canadian public. This would include of a lot of the tragic history that my friend referred to in terms of our dealings or our colonial reality, but also what our First Nations are doing.
We have a shared responsibility to partner with Canadians at large, provide them with the information and get them on board and on our side in terms of recognizing what we have done, the potential that we have. If we address the governance issues and move beyond the Indian Act in a meaningful way in our communities, there is the potential that that investment of time, energy and resources will reap tremendous rewards from the outset when our First Nations are self-governing, operating with good governance and contributing to an economy that is fundamentally connected with our governments, just as it is with the Government of Canada. Then and only then, with a well-educated public, will we be able to have a really strong and meaningful economy that supports all of the governments existing within Confederation.
Ms. Desrochers: Bill C-27 will not dispel the myths, like Ms. Wilson-Raybould said, but will perpetuate them. That issue needs to be addressed by the political parties because they promote and encourage the media to tell the public that our people are fraudulent and corrupt and are abusing the system. The fault lies with the federal government and the political parties on that issue, and they need to stop it. Chief Theresa Spence is a prime example. They attacked her and called her corrupt and fraudulent in the media; and the Prime Minister allowed that to happen.
Senator Seth: I am a new member of this committee. Bill C-27 has been going for some time. I have heard repeatedly from various witnesses that maintaining self-governance is very important for First Nations people. Do you think that Bill C-27 will help self-governance practice within First Nations communities in terms of accountability and transparency? Do you think this bill will inspire or promote dialogue between councils and band members in making decisions for each First Nation? What would you say about this?
Ms. Wilson-Raybould: If I understood correctly, you asked whether Bill C-27 will support First Nations in moving toward self-government. If that was the question, I would submit that the purpose of Bill C-27 is to disclose financial information and a schedule of remuneration for chief and council salaries not only from a First Nations government but also from other entities related to a First Nations government and to provide enforcement mechanisms to the minister.
I do not believe that Bill C-27 will achieve what it purports to achieve; that is, it will not achieve increased financial transparency and accountability for the most part as we have been talking about. First Nations are transparent and accountable and are required to be so through funding agreements. In addition, they have self-imposed requirements to disclose information to their citizens, not only for band governments and their operations but also for related entities governed by different governance regimes in the Canada Corporations Act, which is a challenge in terms of reporting for our members in a quasi-public setting. These companies hold their interests in trust for our members. However, the reality for the purpose of discussions or supporting First Nations is that it goes beyond salary disclosure to our shareholders, in this case, our citizens, regarding what decisions are made around band businesses or investments in businesses, and the representation and profits of those businesses. These are all decisions that communities are grappling with in economic development.
Will the bill assist in moving toward self-government? No. What will assist First Nations to move toward self- government is providing them with a mechanism, when they are ready, willing and able to move beyond the Indian Act, so that they are able to do so in their own time and based on their priorities. A mechanism exists in Bill S-212 that should be explored in a comprehensive way. In terms of legislative solutions to the challenges that our First Nations face under the Indian Act, imposed legislative solutions simply will not work. Tinkering around the edges of the Indian Act and dealing with governance issues on a compartmentalized basis will not work. What will work is for First Nations to quarterback all self-governance issues and to be led by our citizens regarding what is appropriate, how we envision the exercise of our right to self-determination in our communities based upon our priorities and the views of our citizens, and, having said that, how Parliament can support First Nations in these efforts.
Senator Raine: This has been very interesting. In a way, you represent the two points of view that we are receiving, one of which is the collective, the AFN representing all First Nations. I believe you have done some wonderful work at the AFN level in building the capacity to move toward self-governance. Certainly, the First Nations Financial Management Board and other tools are helpful for you to move forward. I interpret the Idle No More movement, coming from individuals at the grassroots level, that they are not happy with representation by the ministry or by their chiefs and councils and the AFN. In our history and where we are trying to go, there are always conflicts between the collective and the individuals and how to move forward properly where there is consultation with everybody.
My question will be short after this long preamble. Do you believe that there is a mechanism for the individual First Nation member to be consulted on proposed federal legislation?
Ms. Desrochers: That is a good question, but as long as we have the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada and the Department of Indian Affairs in place, there will never be a mechanism. Those organizations prevent that. Although there are good people working in the offices, all the policy work done by the Assembly of First Nations has not been implemented. They amount to one-size-fits-all frameworks established with set criteria by the Department of Indian Affairs, because it funds the Assembly of First Nations. Everything the AFN does has to be approved by the department.
The Chair: What would a successful mechanism look like?
Ms. Desrochers: Nation-to-nation agreements where the individual nations establish those structures on their own.
The Chair: Are negotiations between the First Nations and the Government of Canada not nation-to-nation?
Ms. Desrochers: No. Individual First Nations are not nations. I am a member of the larger Cree Nation. We did not govern ourselves as individuals under the Indian Act.
Ms. Wilson-Raybould: I want to be clear: Yes, I am the Regional Chief for British Columbia, and I sit on the national executive. The Assembly of First Nations is not a government and does not purport to speak on behalf of First Nations governments. We are not the rights holders, and we certainly respect the ability of those rights holders to speak for themselves. I sit here as the Regional Chief and have the support of the 203 chiefs in British Columbia in terms to be able to bring forward the views and concerns that the First Nation chiefs have expressed to me.
In addition, I sit here as a council member and a citizen of my own community, and I view movements such as Idle No More and citizens speaking up and protesting and using their voice as being entirely positive. It is my obligation as a citizen within my own nation, as it is for all First Nation citizens across this country, to take an active role in my own nation, in determining my own course and to become part of what is happening or to direct the change in my own community. It is certainly not the responsibility of the Assembly of First Nations or other organizations to do that for people. The ability of organizations is to be able to provide that space, recognizing that ultimately, at the end of day, change will only be directed from our citizens, and it is our citizens who are going to ultimately have to get rid of the Indian Act. When I say that, they will ultimately have to vote the colonizer out, to vote away the Indian Act. It is important that we be mindful of the reality that the individuals in our communities collectively in our villages represent and will have to reflect the voices of that community in terms of how they move forward with governance reform and moving beyond the Indian Act. That is the link. There are lots of different levels and there is lots of advocacy, but the reality is that for change to happen, our citizens have to make it so.
Ms. Desrochers: I would like to add a comment.
The Chair: No, I am sorry. I will come back to you, if you wish, but we have two other people who wish to ask questions.
Senator Patterson: It seems to me that we have a fundamental difference about the way of achieving goals we all accept of enhancing self-government amongst First Nations. A courageous Minister of Indian Affairs named Robert Nault undertook a very significant self-government initiative. I think he tried genuinely to work with First Nations. He came up with a comprehensive bill that goes farther than Bill C-27. It was the kind of comprehensive, holistic approach that is being recommended by both witnesses this morning. We all know that that, like the process to define Aboriginal rights in the 1980s following the repatriation of the Constitution, did not get anywhere. It was, in fact, strongly resisted by First Nations when the bill was brought forward.
Our current government and the minister who introduced this bill have decided that the way to chip away at the Indian Act, which we all agree is colonial and antiquated, is to do it in small pieces, and Bill C-27 is a small piece. The First Nations elections act was a small piece, which was optional. The safe drinking water legislation —
The Chair: Senator Patterson, I am sorry, but —
Senator Patterson: My question is this: You are recommending we stop whatever we are doing incrementally and go back to a holistic process, but that has not got us anywhere in the last 30 years. Are you hopeful that something different now would occur to make that process work?
Ms. Desrochers: It is going to be changed with the rise of Idle No More. It is the grassroots people who are speaking up now and holding leaders and organizations responsible for their actions. The change will come, and the Indian Act will be repealed. Our people are getting more educated, and we are taking a stand now because of the behaviour that needs to be addressed at the national level among First Nations representation.
Ms. Wilson-Raybould: Quickly on that, in terms of the approach that you referenced and chipping away at the Indian Act, I recognize and I think First Nations across the country recognize that the status quo just does not work and that we need to move beyond it. First Nations have developed their own solutions to do that in various sectoral governance initiatives that I referenced, but chipping away or using the federal legislative powers to chip away at the Indian Act, whether it is Bill C-27 or otherwise, to replace it with essentially the same thing that exists right now simply does not work. We need to support First Nations governments in determining or directing that incremental movement that you speak about and replacing it with their own governance initiatives. In terms of the broader perspective around moving beyond the Indian Act or repealing the Indian Act, it will be determined at the pace and rate that the First Nations determine. We need to find ways and mechanisms to support that.
Senator Dyck: We have heard a lot about the so-called corrupt, non-compliant First Nations. Given that the minister can give the information to the band members already without this bill, and given that the minister has the same remedies available to him or her to make them comply, how will Bill C-27 improve the situation? How will it make those non-compliant First Nations comply?
Ms. Desrochers: It will make them comply because it sets out the process for making them comply. They can withhold funding on the agreements and they can terminate the agreements. In effect, Bill C-27 will accomplish the purpose of the Department of Indian Affairs, but it will not improve the situation on the ground. It will lead to increased fighting among the leadership and people because it is a colonial piece of legislation governing the community.
Ms. Wilson-Raybould: It will not increase accountability and transparency. This bill has been considered quite substantially. There is an opportunity with the new Minister of Aboriginal Affairs, Minister Valcourt, to reflect on the evidence before the committees and to reflect on Bill C-27 and consider, given all the policy discussions and rationales, whether or not the purpose of Bill C-27 is in fact actually achieved. I think that is an opportunity for the new minister.
Ms. Desrochers: It will achieve the purpose of the federal government, but it will not create a positive atmosphere on the ground.
Senator Dyck: Other witnesses, including the minister, have told us that the same remedies that are in the bill are already available to the minister, so there is no difference.
Ms. Desrochers: The people need to be educated on the process. Our people are not being consulted on the ground. Chief Wilson said she has the permission of all her chiefs to speak, but I can tell you there are a lot of people in B.C. who disagree with the actions of their chief and council. I am not against Indian Act chiefs and council. I am all for good governance and respect the right to self-government, but just because you have the right to speak on behalf of 203 people, that does not give you the right to speak for 1 million people across the world. I do not mean to be disrespectful when I say that.
Ms. Wilson-Raybould: To confirm what has been said, the remedies already exist, as you say. There is nothing that is different in terms of the authority that the minister has.
Senator Raine: Ms. Desrochers, you said we need a well-educated public, and we know that, but I see this Bill C-27 as providing education to the public in an easily accessible way for the public — members of First Nations and other people — who might be interested in finding out the information they cannot get right now. Would you agree?
Ms. Desrochers: In terms of putting the information on the Internet, yes, it makes it easier for the people to get that information. However, the bill itself interferes with the governance of the First Nation as a collective. That is not how we govern ourselves, by having an outside source imposing legislation upon us.
The Chair: I want to thank you for being here today. It was an excellent discussion. I appreciate the various opinions brought forward, and I also appreciate the senators' engagement. I am sure that if I continued on, we would find ourselves being kicked out this room rather than leaving on our own.
We will suspend and move in camera.
(The committee continued in camera.)